Barrett v Short

[1991] HCATrans 45

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S112 of 1990

B e t w e e n -

MARITA JOAN BARRETT

Applicant

and

BRUCE SHORT and

JOAN MARGARET SHORT

Respondents

Application for special

leave to appeal

MASON CJ
DEANE J

GAUDRON J

Barrett 1 15/2/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 12.24 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:  May it please the Court, I appear with

MR L.A. LEVY for the applicant. (instructed by

G.J. Sharah Henville & Co)

MR M.D. IRELAND, QC: May it please Your Honours, I appear

with my learned friends, MR A.C.A. BRIDGE and

MR I.J. McGILLICUDDY, for the respondents.

(instructed by Audrey Lee)

MR GROSS:  Your Honours, we submit the judgment in the Court

of Appeal raises a number questions of real public
importance, the first question being whether the

general duty of care by occupiers to all categories

of entrants, as established clearly by this Court

in Zaluzna's case, should be read down or replaced

in the case of owners - occupiers of domestic

premises so that they owe to social entrants, as

the Court of Appeal found, only a duty to protect

against dangers of which they know or have received

warning.

MASON CJ:  You rely on this passage on page 29, do you, at line 18 as enunciating a principle?

MR GROSS:  Yes, that is so. Your Honours, such a

formulation involves equating the defendants in

this case to a pre-Zaluzna situation of a licensor

who only had an obligation in relation to perhaps

concealed traps of which there was actual knowledge

because if one poses the two situations where one

must respond as being dangers of which one knows or

have received warning, it is all the same thing

because if you have received the warning, in our
submission you know.

That, in our submission, then leaves untouched by the true operation of Zaluzna's case any

continuing duty to maintain the premises, inspect

the premises, or inquire concerning the continuing

security or safety of the relevant parts of the

premises. Now, Your Honours, of course reasonable

care in the circumstances varies, depending on what

part of the premises one is looking at, but the

balcony railing in this case represented, if not

properly inspected and maintained, a source not

only of danger but, it was accepted, of severe

injury and death.

The approach of the Court of Appeal, in our

submission, involved, by various means which were
not appropriate, replacing the carefully framed
findings of Acting Justice Callaway with a series
of conclusions which were not justified on the

evidence.	I appreciate that is not a special leave
question.

Barrett 2 15/2/91

MASON CJ:  No, but was Mr Justice Meagher correct in, as it

were, maintaining that the primary judge was

mistaken in his treatment of the evidence?

MR GROSS:  His Honour Mr Justice Meagher was quite wrong, in

our submission. Can I give Your Honours an

illustration, if I may?

MASON CJ:  Yes, just give us an illustration. Do not take

up too much time.

MR GROSS:  Your Honours, an important question was the

inferences drawn from the weathered and cracked

state of the northern plank as shown on the

photographs and from which His Honour

Justice Callaway inferred warnings should have been

provided to the defendants to maintain it and fix

the balcony, make it more secure. His Honour

Justice Meagher at the bottom of page 27 deals with

this proposition. Your Honours will see at line 17

he quotes His Honour Justice Callaway as saying:

the plank was "weathered and cracked in such a

way as to suppose that it could be unsafe";

Now, His Honour says:

it is difficult to say what the photo of the

end of the northern top plank demonstrates.

The top of page 28:

It is not evident that it testifies to obvious weathering and cracking.

Then His Honour quotes from Lord Reid in a House of

Lords case that:

"the judge ought not, in my opinion, to
attempt to read or construe the photograph

himself; he looks at the photographs in

determining which of the explanations given by

the witnesses appears to be most worthy of

acceptance."

So ultimately His Honour, having looked at the

photograph himself, contrary to the advice of Lord

Reid, decides that it is not weathered and cracked.

He says that at the top of page 28.

Your Honours, His Honour fell into exactly the

same error as was identified by Lord Reid, although

in the context of a complex agricultural machine

which was harder to understand on photographs than

a worn and cracked piece of wood. But the evidence

was there concerning the worn and cracked and

weathered state of the timber, and can I just give

Barrett 15/2/91

Your Honours very quickly the references:

Mr Barrett, the plaintiff's brother, who looked at

it after the accident, at the bottom of page 53
described it:

The timber just struck me as being consistent with a balcony railing that had spent that amount of time in the weather ..... looked like

a bit of timber that had spent its whole life

in the rain.

Then at page 54, line 13:

just seemed consistent with the weathering of

timber that is out in the open.

Page 55, lines 20 to 25, the nails were rusty nails

and the surface from which they were emanating was

discoloured. But then there is reference in the

evidence of the police officer who came along and

took the photographs. That is Sergeant Oosterhoff

who came along on 5 November, that is a week after

the accident, inspected the wood that was there,

the planks that had fallen were not there but the

planks that he looked at that were there he

describes at page 62, lines 10 to 22.	He made an
observation:

of the structure was still standing ..... the

joints in a similar position to the joint that

had failed, showed a fair degree of weathering

and splitting of the timber.

So far as the general appearance and weathered

condition of the remaining timber is

concerned, that is on the two remaining

sections, the longitudinal section and the

shorter section to the north -

he says:

They seemed to be of the same age and texture,

same general appearance.

Now, Your Honours, it is he who not only, as it

were, produces the photograph, he is describing his

own visual observation, yet His Honour

Mr Justice Meagher is drawing conclusions - from

the photograph - of an absence of such weathering

and cracking. In our submission, weathering and

cracking on a balcony which is only secured by

nails is not capable of being categorized as

anything other than a warning of the kind that

Justice Meagher said such an occupier, so placed,

required. But, in any event, it would be, on the

factual plain, a sufficient stimulus to the

Barrett 4 15/2/91

obligation in appropriate circumstance to inspect,

obtain advice, inquire, maintain.

MASON CJ:  How many people were at this party?

MR GROSS: There were about, Your Honour, my recollection is

50 or 60 and - I am sorry, I am told 40 to 50, but

using substantially this particular balcony at

various stage -

MASON CJ: This balcony?

MR GROSS:	- - - and en masse.
MASON CJ:	Was it the focal point of the party, was that the

main area where the guests were gathering?

MR GROSS:  There were other areas, but it was the area off,

I think, the lounge room and the bedroom on the

first level. Now, in our submission, the

circumstances that should have been taken into

account were the likely presence of such a large

number of persons who would naturally recline on

such a balcony as part of relaxing where the

integrity of the balcony secured by a few nails was

all that stood between those guests and eternity.

In our submission, a reasonable occupier would have

taken a greater degree of care, but in any event,
His Honour took the view that no occasion had ever
arose for essaying - I assume that means attempting

- the task of discovering how the balcony was

secured. Your Honours, that is the first area of

error, we would submit.

The second area is that His Honour imposed on

the defendants a relaxed standard of care, not

being the objective standard of care of reasonable

care in the circumstances but one which was diluted

by reference to their own personal knowledge,

interest and background in handyman-type

activities.

DEANE J:  Mr Gross, do you concede that any of His Honour's

criticisms - that is Justice Meagher - of Acting

Justice Callaway's factual findings were justified?

I mean what about his statement that he had got the

ends wrong?

MR GROSS:  Your Honour, that is certainly a matter that

would be disputed. Can I just go to the matters

that are disputed, Your Honours?

DEANE J:  Not in detail. I was just asking whether there

were any of the criticisms that are not disputed.

MR GROSS:  We would be disputing every proposition

concerning Justice Callaway's judgment and the

Barrett 15/2/91

factual findings that were made by Justice Meagher.

In our submission, His Honour inappropriately

characterized the undoubted evidence that was

there; further, in our submission, His Honour

proceeded to determine the facts giving full

credence to a number of witnesses whose evidence

was challenged but treating the evidence in a sense

as being unchallenged, therefore available for use

on the retrial, in the Court of Appeal, these

witnesses not being persons whose credentials or

knowledge or insight particularly impressed

Mr Justice Callaway. So that, in our submission,

an error of the Abalos kind was made. Although at

trial these witnesses were of varying degrees of

effectiveness or attractiveness and their evidence

was challenged, His Honour on appeal treated the

evidence that they gave as requiring full weight,

for example, the uncontradicted evidence of the

appellants, this is page 28, line 23, as to what

they in fact observed about the balcony.

Your Honours will see there was question after

question directed to whether or not they saw and

made due note of what was obvious, namely that this

part of the balcony was not secured by bolts like

the other parts but by nails and that the worn and

cracked state of the timber work, which was obvious

to the police officer and which we submit is

obvious on the photographs, would have been obvious

to the appellants had they look, or even just being

in a normal location where they would be and expect

to see. So, in other words, there was no

obligation to go and look; what was there was there

to be seen just in their normal use of the balcony.

DEANE J: That is really turning into an attack on factual

matters.

MR GROSS:  Your Honour is correct. I was answering

Your Honour's question but I do not want
Your Honours to think that this matter - - -

DEANE J:  What if you were granted leave to appeal and

succeeded in persuading the Court that the general

proposition to which the Chief Justice directed

your attention simply is not acceptable if it is
viewed as some sort of general proposition of law,

where would you seek to go then, because

Justice Meagher goes on to say, so far from there

being any warning Dr Short had actually put pressure on the area in question and so on.

MR GROSS:  We would say that, of course, gave them even more

opportunity to check the state of the timber and

the nails, but I see what Your Honour is

raising - - -

Barrett 6 15/2/91

DEANE J:  But you then ask us to set out on an exercise of

looking at the photos or what would you say is the

next step?

MR GROSS:  Your Honours, I must say that seems like an

unappetizing course for all concerned, having - - -

DEANE J:  But if we have to do it, of course we would have

to.

MR GROSS:  Your Honours, our preferred position is, of

course, that Justice Callaway's judgment be

restored and that would require determining the

validity of the factual criticisms. No doubt such

matters could be reduced to written submissions so

that the time of the Court was not taken up but,
failing that, Your Honours, if the Court wished to

look at the error of law, a course open would be

sending the matter back for a new trial.

Your Honours, can I just briefly mention the other matters that we would submit arise in this

case. Apart from the dilution of the general duty
of care as it applies to social hosts and the
reduction of the objective standard of reasonable

care so as to have regard to the individual

characteristics of the defendants, we would submit

there is an important question at stake, namely the

way in which courts should approach photographic

evidence where the evidence is clear enough to be

real evidence in its own right and not merely some

uncertain guide for resolving disputes between

conflicting witnesses.

Your Honours, that completes my submissions.

MASON CJ: Yes, thank you, Mr Gross. Mr Ireland.

MR IRELAND:  It is our submission that the law as it applies

to the duty of care owed by occupiers to entrants

has been clarified by this Court and it is

well - - -

MASON CJ: But has it not been obscured by this passage on

page 29?

MR IRELAND:  We would have thought with respect, not,

Your Honours. What His Honour is stating there is

a factual situation as it applies to the occupiers

of domestic homes.

MASON CJ:  Does the judgment contain no proposition of law

at all?

MR IRELAND: With respect, I think that is so, Your Honour.

It does not seek to enunciate any particular

proposition and accepts and applies the proper

Barrett 7 15/2/91

standards as they emerge in Zaluzna, of course

adopting as it did what was said by this Court by

Mr Justice Deane in Hackshaw v Shaw.

MASON CJ: But is not His Honour saying that there cannot be any liability unless the householder actually knows

that the feature of the construction is unsafe or

else receives a warning?

MR IRELAND: Either there is something which is apparent of

which he is aware or there is something which puts

the householder on notice that he should make

further inquiry. Now, what His Honour is saying is

that that is not so and that if, in fact, the

contrary is to be contended for, the imposition

upon the general public would be onus in the

extreme. How does one in fact then, when inviting

someone into one's house, meet this test other than

by having the place inspected and bearing in mind

that within one's home is to be found such items as

electricity and gas, both of which are known to

cause harm to persons, to be satisfied on a

continuing basis that every time one exposes one's

homes to guests, that it is safe in every - - -

MASON CJ: It may not be every time, but if one is inviting

a throng of 40 or 50 people on to a veranda that

has wooden railings only, I must confess for my

part I would have thought that a prudent

householder would be minded to inquire whether or

not the railings were safe.

MR IRELAND: Well, Your Honour, we have here a very

conventional house in a well regarded suburb

in -

MASON CJ:	It does not seem to very conventional in terms of the railings on this balcony.
MR IRELAND:	Your Honour, the evidence does not support that

they were in any way contrary to what one sees in

houses every day of one's life. It is a western

red cedar railing around a veranda which is

elevated above ground level.

GAUDRON J: Unsupported at the sides, no vertical supports

at the sides.

MR IRELAND: With respect, Your Honour, no.

GAUDRON J:  Other than the battens and the mitred joint. No

rail supporting these two ends.

MR IRELAND: These are rails in themselves.

GAUDRON J:	No posts.
Barrett	15/2/91
MR IRELAND:	No intermediate posts between - it is an 8-foot

veranda with no intermediate posts along the 8-foot

- other than the extended - - -

GAUDRON J: Yes, so there is no vertical support except as

comes from the mitreing and the batten.

MR IRELAND:	Yes, that is correct.
GAUDRON J:	And it was that that the trial judge said put

them on notice.

MR IRELAND: That mere fact? Well, I do not think that

was

GAUDRON J: Finding (1), does it not? Finding (1) raises

that point.

MR IRELAND: That is not what put them on notice, I think.

What he said was, I think, that had he looked at them it would have been established that they were nailed joints and not bolted joints and that, he said, would have put them on notice - - -

GAUDRON J:  They could only be bolted if they have vertical

supports.

MR IRELAND:  Yes. Your Honour has not seen the photographs,

of course. There is a vertical support right in
the corner of the mitred joint. There is a

vertical support there and there is a vertical

support at the other end which is in the form of
the oregon batten which is attached to the wall of
the house, so that there is vertical support,

Your Honour; it is just a question of what is the span between the two vertical supports and that is,

in this case, 8 feet on the evidence.

Might I come to the question that Your Honour

the Chief Justice asked about whether or not the

primary judge was mistaken in his treatment of the

evidence and my learned friend, with respect to him

no support for that, but that, with the greatest	said, as I understood what was put, that there was
respect, is why the appeal succeeded. The primary
judge was, in fact, mistaken, and clearly mistaken,
on his understanding of the evidence that was
before him and it was on a careful and detailed
examination of that evidence that the Court of
Appeal became convinced that His Honour was
completely wrong and had proceeded down the wrong
path, albeit misled, so it is clear, by one aspect of the oral evidence.

But it was the critical question of what

Your Honour Mr Justice Deane has referred to as

"Did he get the ends wrong?", he cert.ainly did. He

Barrett 9 15/2/91

believed that he did not have before him a

photograph of the critical end when in fact he did,

and when that was expounded before the Court of

Appeal my learned friend made no objection or put

anything to the contrary than that that was true,

His Honour, had got the ends wrong.

That was where the appeal turned, and it is

down the track which His Honour would not have gone

had he had an awareness of what that situation was.

There were before His Honour four ends, the four

critical ends. His Honour believed that one of

them, one critical end of the plank was missing.

He therefore adopted another photograph of the

other end of the balcony and transposed the

condition that he divined from an examination of

that photograph to the subject end, whereas he

actually had before him at all relevant times the

appropriate photograph which demonstrated quite to

the contrary.

When Mr Justice Meagher says what he says on

examination of the critical photographs, and he

does this at the bottom of page 27, reference

line 20:

Although his Honour was misled by the oral evidence in this regard, the photographs which are exhibits 1(11) and 1(13) are photographs

of the top southern plank at the batten end

and the mitred end respectively, and they on

examination show no obvious signs of

weathering or cracking.

That is not a piece of evidence that His Honour

Mr Justice Meagher is gleaning, that is a statement

of what the uncontested evidence of one of the

witnesses showed.

GAUDRON J: But that means nothing as a statement of fact

unless you know what the other mitred end looks

like, which is the evidence of Mr Barrett.

MR IRELAND:  I am sorry, Your Honour, I do not understand.

GAUDRON J: Just as a factual consideration, it means

nothing that there is no wearing of those if the

evidence is that the other mitred end has

weathering.

MR IRELAND:  You mean the mitred joint at the other end of

the balcony?

GAUDRON J:	To which it was nailed.
MR IRELAND:	No, with respect, Your Honour, let me go back. There is a critical mitred joint at the southern

Barrett 10 15/2/91

end of the balcony. This was the joint that

failed. Both the components of that mitred joint

were available to His Honour in the photograph for

him to see. What His Honour believed is that only one of those planks was before him, that is to say the bolted plank that remained after the accident,

and that the other one had not been photographed,

and he found that and he mentioned it on two

occasions in his judgment - that is His Honour the

primary judge. On two occasions he found it

extraordinary and unexplained and serious and he

relied on it, the fact that he did not have a

photograph of that piece of timber.

So in order to give himself some basis for

determining what that was like he moved up to the

other end of the balcony where a photograph had

been taken, not of the inside but of the outside,

and he said, well, then, there is no reason to
assume that the one in question did not look like

the one up at the other end. Now, His Honour was
wrong in that regard. Both those pieces of

material were before him in photographic evidence

but he mistakenly believed that was not so. So he

did not look at the two critical halves of the

mitred joint, he assumed that he had been left in

the dark, whereas in fact he had not -

GAUDRON J: But the fact that one of the mitred joints

showed no obvious signs of weathering told you

nothing, so you could not draw any conclusion

simply from what is there stated at the bottom of

page 27. You cannot draw any conclusion which

results in a verdict for the defendant from what is

there said at page 27.

MR IRELAND: Seen with respect in the light of the whole of

the evidence, you can, because the court here is
proceeding upon the basis that half of the mitred

joint is unquestionably there in the photographs.

You see they are numbered 1 to 13. There are 13

photographs leading up to them. There is no doubt

in anybody's mind that one-half of the critical

mitred joint was the subject of a photograph before the court in evidence. Where the mistake arose was that His Honour believed that the other half of

that mitred joint - and that is to be seen in one

of the two photographs 11 or 13, I am not sure
which one at the moment, but of course they are

here if Your Honours would care to see them - what

His Honour thought was that none of the photographs

disclosed the other half of the mitre. His Honour

was wrong.

Then being denied, as he thought, access to a

photograph showing the subject timber, he moved

Barrett 11 15/2/91

away and, in our submission incorrectly, made

assumptions that the critical end - - -

MASON CJ:	Can we have the critical photo?
MR IRELAND:	Yes, Your Honour.
MASON CJ: Perhaps all the photographs of the railing.	But

if you would pass up first - - -

MR GROSS:  Your Honours, while my friend is doing this may I

say that it was a matter of dispute in the Court of

Appeal as to what the photographs showed, which was

which, and what inferences could be drawn. It

would remain a matter of dispute. So in so far as

Your Honours are seeing the photographs, the

problem still exists.

MASON CJ: Yes.

MR IRELAND: Your Honours, this is a copy of exhibit 1. It

shows the photographs numbered 1 to 13. Might I

first of all hand - the critical photographs, if I

can refer to them by the numbers here, are the

photograph numbered 11 which is the mitred joint

which His Honour believed was not a mitred joint

and was not before him as a picture of a mitred

joint, that is photograph numbered 11, and the

matching photograph to that, the other half of the

mitred joint, is photograph numbered 5. So that

they are the two photographs which illustrate the

particular joint in question.

We have some enlargements of photograph 11 and

13 which are the two ends of the plank in question.

If Your Honour Justice Gaudron looks at

photograph 5, of which I can hand up another copy,

that does show the post or vertical stanchion in

the corner where the mitred joint was.

GAUDRON J: They are discoloured.

MR IRELAND:  The stain which is used to paint them,

Your Honour, runs into the crack of the mitre, the joint-of the mitre, and that is the discolouration

Your Honour sees there. That is established by the

evidence. Now, if I can just make the point about

photograph 11, His Honour believed that
photograph 11 was in fact a squared end.

Your Honours will appreciate that an end rail is made up of a squared end where it butts against the house and a chamfered end where it forms the mitred

joint. His Honour believed that photograph 11 was

a photograph of a squared end and on first glance

it so appears. In fact it is a chamfered end and it is the crucial chamfered end. When one has an

appreciation of that fact, and the Court of Appeal

Barrett 12 15/2/91

did have, the picture changes dramatically and

changed dramatically in this case.

His Honour said at page 7, at the foot of the

page at line 19:

In passing I must note that it seems

extraordinary that the Coroner would have been

denied what would seem to be the most relevant

material so far as assisting to establish by

photographic assistance in any event the cause

of the deceased's fall.

And he is there referring to the fact that

Sergeant Oosterhof£ photographed the remaining

northern end of the balcony and did not photograph
the piece of timber which was leaning against the

wall down beside the house which had come off.

His Honour went on to say further on at page 8,

line 16:

Although of course I must deal with the case

on the evidence before me, I am somewhat

perturbed by the fact that what is probably
the most relevant piece of timber in relation
to ascertaining the cause of the accident was

not photographed by Mr. Millard.

Now, that is a reference to the fact that the

insurance assessor who went out to the scene
photographed the whole of the pieces of timber and

in his evidence His Honour convinced Mr Millard

that what is in fact a mitred end, photograph 11,

was a squared end. Now, Mr Millard had

photographed them some years before and he said,

"Well, I am not at all sure about that. I think it

is probably a chamfered end." In reality it cannot

be other than a chamfered end and it must be the

relevant piece of timber.

Now, His Honour proceeded on the basis that he

did not have before him those pieces of timber

which show what the joint was like, so far as
timber was concerned.	He went on down that track.

It was only when, of course, the whole evidence was

reviewed and the Court of Appeal was taken in

detail to these photographs that it became clear

that His Honour was mistaken in this regard, and in

order to do so, he had applied a test which was, in our submission, untenable, and that was to take the black and white enlarged photograph of the other

end and make some assumptions about that which was,
with respect, not supported by the evidence and

apply that test to the evidence at the end where it

was.

Barrett 13 15/2/91

GAUDRON J: But I must say for myself I do not see how that

relevantly leads to a conclusion in any event. The

question here really must be whether or not it was
reasonably foreseeable that with a large gathering

of people somebody might lean against either of the

lateral railings and that they might give way.

MR IRELAND: It is the second step, Your Honour.

GAUDRON J: If they both have the same form of construction,

which they appear to, and one is showing some

signs, why would you not think, well, there may be

something about the other one as well.	Why would
it not still be open?

MR IRELAND:  They may be a fallback assumption one could

make if you did not have the evidence before you, and His Honour took that course, but he did have,

and the uncontroverted evidence of the expert was

that those photographs show timber which is not

deteriorated. It is irrelevant, it is not before

this Court. It is page 227 of the appeal papers,

but that was established to the satisfaction of the

court, and it is not something Mr Justice Meagher

is making an assessment of himself; the evidence is

that those photographs do not show any deteriorated
timber.

So that the question is: in a form of

building which is acceptable on one view, but
questionable with the benefit of hindsight, in
circumstances where the occupiers of the home know
absolutely nothing which would put them on notice

that something should be done, did they fail in

some way in the duty they owed to take reasonable

care, and the court of course answered "No" and we

submit - - -

DEANE J: But Mr Ireland, can I just ask you this: if you

go to page 29, assume against yourself just for the

sake of the question I want to ask you that the

general proposition commencing on line 18 cannot be

allowed to stand as a general proposition, can this judgment stand?

MR IRELAND:  I think it is central to the finding of the

Court of Appeal.

DEANE J:  I am quite convinced of the difficulties that what

you have said throw up about this as a vehicle, but

if that is put forward as a general proposition,

and it seems to be, it is one of great importance.

If it be wrong, it is hard to see how this judgment

can survive it being wrong, even though one can

speculate that His Honour may well have reached the

same result without it.

Barrett 14 15/2/91

MR IRELAND:  It would of course be our submission,

Your Honour, that His Honour was compelled to reach

the result that he did in the absence of that

statement and that any court reviewing the facts of

this case and recognizing the error that His Honour

the acting judge fell into would have to support

the reversal of that judgment.

DEANE J: Except, if the Court of Appeal had dismissed the

appeal, the difficulties you have highlighted would

be tremendously persuasive, but when the plaintiff

has succeeded at first instance, the Court of

Appeal has upheld the appeal, if it has upheld it

on the basis of a mistaken critical proposition it

is difficult to see why we are not forced into the

position of getting involved.

MR IRELAND: Merely in writing that statement, Your Honour

means, if it be wrong.

DEANE J:  I mean we cannot say, on this leave application,

"Oh, they should have reached the same result on

other grounds" because we have not the evidence.

MR IRELAND:	I appreciate that, Your Honour.
DEANE J:	I am not looking for concessions; I was really

trying to put to you some problems I see.

MR IRELAND: Yes. I am sorry I cannot be more helpful in

dismissing them out of hand. I am reminded, and I

would wish to put to Your Honours, in deference to

those with me, that when His Honour says "receive a

warning", what His Honour means no more than, of

course, is being provided with something to

constitute constructive notice that something is

wrong. It is not a warning in any physical or

direct sense but merely circumstances which alert

one to the danger. In this case we say, with
respect, there was not a tittle, not a suggestion,

really, of anything that would put them on notice.

It is trite and easy to be wise after the event and

say, "Well, that looks like an unsafe nailed mitred	joint", but secure as it was in the circumstances,
no expert was prepared to say that in any
unequivocal way and in fact even the experts
called on behalf of the plaintiff were by no means
convincing in any suggestion that that was a bad
way to build that particular - - -

MASON CJ: Yes, but we cannot review that evidence at this

stage, Mr Ireland.

MR IRELAND: With respect, Your Honours, those are the

matters I wish to put.

Barrett 15 15/2/91

MASON CJ: The Court need not trouble you, Mr Gross. There

will be a grant of special leave to appeal in this

case.

AT 1.09 PM THE MATTER WAS ADJOURNED SINE DIE

Barrett 16 15/2/91